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Cuthbert v Moreton Bay Regional Council[2015] QPEC 63

Cuthbert v Moreton Bay Regional Council[2015] QPEC 63

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cuthbert v Moreton Bay Regional Council  [2015] QPEC 63

PARTIES:

HEATHER LORRAINE CUTHBERT

(Appellant)

v

MORETON BAY REGIONAL COUNCIL

(Respondent)

FILE NO/S:

2283/2015

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2015, 1, 2, 3, 4 & 21 September 2015

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal allowed in part.
  2. I will hear further submissions on the form of orders to issue a substituted environmental protection order and the future conduct of the proceeding.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – appeal against Environmental Protection Order imposed by council for environmentally relevant activity – whether breach of general environmental duty – whether breach of conditions of environmental authority – whether Environmental Protection Order needed to secure future compliance – whether the exercise of the discretion under s 358 of the Environmental Protection Act 1994 (Qld) should result in the issue of Environmental Protection Order.

LEGISLATION:

Environmental Protection Act 1994 (Qld), ss 358, 521 & 531.

Sustainable Planning Act 2009 (Qld)

CASES:

Loader v Moreton Bay Regional Council (unreported QPEC

Griffin DCJ 20 December 2012) and on appeal Loader v Moreton Bay Regional Council [2013] QCA 269, related.

Cuthbert v Moreton Bay Regional Council [2015] QPEC 36, related.

Briginshaw v Briginshaw (1938) 60 CLR 336

Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPELR 262

Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222

Attorney‑General New South Wales v Quin (1989) 170 CLR 1

Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111

COUNSEL:

A Skoien with D Purcell for the Appellant

S Ure for the Respondent

SOLICITORS:

Butler McDermott Lawyers for the Appellant

Thomson Geer Lawyers for the Respondent

  1. [1]
    The appellant’s use of a slipway to repair, sand, spray, fibreglass, water-blast and anti-foul boats has been a nucleus of disputation with the respondent council amid a chorus of complaints from local residents.
  1. [2]
    The appellant now appeals against the council’s internal review that affirmed the issuance of an environmental protection order against the appellant.

Background

  1. [3]
    Since 2002 the appellant has carried on the business of a boat maintenance and repair facility at 48 Bishop Parade at Toorbul, comprising Lot 20 on RP 7294 and Lot 1 on AP 2986. The facility is adjacent to Elimbah Creek, near the Pumicestone Passage. The overlayed aerial photographs show Lot 1 as an extension of Lot 20 across Bishop Parade and into Elimbah Creek. Lot 20 is a freehold lot improved by a house and a shed. The shed fronts Bishop Parade and is adjacent to Lot 1 over which the applicant holds a permit to occupy. Lot 1 is unallocated State land improved by a boat ramp, slipway and jetty.
  1. [4]
    Several owners operated the facility without formal environmental controls for 34 years between 1962 and 1996. After the introduction of the Environmental Protection Act 1994 (“the Act”), the facility was identified as an environmentally relevant activity, and in 1996 an environmental authority issued under the Act.
  1. [5]
    Over time, a new larger shed on Lot 20 replaced an old one, rails running between the slipway on Lot 1 into the shed on Lot 20 were removed, and the slipway was improved with grated drainage, new railing, concreting, fencing and a reoriented winch system. Generally speaking, the type of boat repair and maintenance work has been similar over the years, with evolving work and environmental practices.
  1. [6]
    An environmental authority continues to govern the activity conducted on both Lot 20 and Lot 1.[1]  The environmental authority applies subject to conditions under the Act.  By operation of the Act, and successive planning legislation, the environmental authority continues in force as a development approval under the Sustainable Planning Act 2009 (Qld) (“SPA”).
  1. [7]
    Some local residents have made persistent and numerous complaints about the facility; particularly about the appellant’s use of the slipway on Lot 1 to repair, sand, spray, fibreglass, water-blast and anti-foul boats. 
  1. [8]
    There have been previous proceedings involving the environmentally relevant activity (“ERA”) operated by appellant (P & E Appeal Nos 237 of 2009 and 1664 of 2010).[2]  The first involved an appeal by the appellant against an enforcement notice issued by the council requiring the appellant to cease using the then Lot 1 for the purposes of the ERA, and the second involved an appeal against the refusal of a development application made by the appellant for a development permit to use the then Lot 1 for the purposes of the ERA.
  1. [9]
    In the context of those previous proceedings substantial expert opinion was admitted, including joint expert reports prepared for hydrology, aquatic issues, ecology, acoustic amenity and air quality. Indeed, the appellant’s experts, Mr King and Mr Collins, prepared a site based environmental management plan for the ERA.[3] The appellant’s consultants, Gilbert and Sutherland, prepared a site based stormwater management plan and her other consultants, BMT WBM, prepared a revised stormwater management plan.[4] 
  1. [10]
    Subsequent to these court proceedings, council officers inspected the facility on 13 May 2014, and also engaged appellant’s husband in a recorded conversation. However, the council officers have not had the advantage of observing the facility in operation on any occasion.
  1. [11]
    After more than a year, the council decided, through its delegate Craig Manley, to issue the Environmental Protection Order (“EPO”) on 31 March 2015 in relation to acoustic amenity, air quality, water quality and stormwater and aquatic ecology.
  1. [12]
    The protection order prescribes 57 requirements “to secure compliance by [the appellant] with the conditions of the Environmental Authority and with the general environmental duty".  The council asserts that the protection order requirements are reasonable and practical measures to prevent or minimize harm from the operation of the activity on the premises.
  1. [13]
    The appellant sought an internal review of the original decision. The council affirmed its original decision. The appellant now appeals from that review decision.
  1. [14]
    On 29 June 2015 this court ordered a partial stay of the operation of the protection order pending the final determination of the appeal.

Jurisdiction

  1. [15]
    This is an appeal, pursuant to s 531 of the Act, against the review decision to confirm the original decision to issue an environmental protection order made under s 358 of the Act.
  1. [16]
    The appeal is by way of rehearing, unaffected by the council’s decision.[5]  The court rules and directions govern the proceeding.  In deciding the appeal, the court is empowered to:[6]
  1. (a)
    confirm the decision appealed against; or 

  1. (b)
    vary the decision appealed against, and such varied decision will be taken to be that of the council; or 

  1. (c)
    set aside the decision appealed against and make a decision in substitution for the decision set aside, and such substituted decision will be taken to be that of the council.
  1. [17]
    The onus of proof rests with the respondent council. Whilst there is no doubt that that the proceedings are governed by the civil standard of proof, being the balance of probabilities, there is some debate whether the standard is modified by the “sliding scale” described in Briginshaw v Briginshaw (1938) 60 CLR 336.[7] 
  1. [18]
    In this case, section 538 is not a penal section. No sanctions are sought for the commission of any offences. However, the decision necessitates findings of whether the appellant has breached the EA or its general environmental duty by carrying out any activity that causes, or is likely to cause, environmental harm or nuisance. Such findings may bespeak potential offences against ss 430, 437, 438, 400 and 440ZG of the Act involving material environmental harm or serious environmental harm, which are punishable with fines ranging from about $70,000.00 to $525,000.00, in the absence of a wilful element.
  1. [19]
    In an application seeking enforcement orders, injunctive and declaratory relief predicated on allegations that the respondent had committed various breaches of ss 437 and 438 of the Act, Robinson DCJ described the appropriate standard of proof as being “at the higher end of the civil standard”.[8]
  1. [20]
    Having regard to the consequences of the outcome of this proceeding, in my view, the appropriate standard of proof to be applied is that at the higher end of the civil standard in accordance with the Briginshaw principles.[9] 

Issues

  1. [21]
    The determinative questions in the appeal are:
  1. Has the appellant breached conditions of the environmental authority?
  1. Has the appellant breached the general environmental duty?
  1. Is an environmental protection order needed to secure future compliance with the general environmental duty and/or environmental authority?
  1. [22]
    If these are answered in the affirmative, then the court must consider whether, in exercise of its discretion, an environmental protection order should issue, including the requirements of that order.

Has the appellant breached conditions of the environmental authority?

  1. [23]
    The council asserts that the appellant has breached the EA by failing to comply with conditions about acoustic amenity, air quality, water quality and stormwater and aquatic ecology. 
  1. [24]
    In summary, the appellant submits that there is no probative or substantive evidence before the Court proving, on the balance of probabilities, non-compliance with those conditions. Alternatively, to the extent that there is non-compliance, the appellant maintains that the non-compliance pertains to administrative issues, as opposed to operational issues, and therefore does not validate the imposition of additional conditions.
  1. [25]
    It is convenient to deal with the schedules of the environmental authority in turn, which ought be read in conjunction with the following relevant general conditions in Schedule A:

"Maintenance of Plant and Equipment

(A2) The holder of this environmental authority must ensure that:

(i) All plant and equipment necessary to ensure compliance with the conditions of this environmental authority is installed; and

(ii) such plant and equipment is maintained in a proper and efficient condition; and

(iii)  such plant and equipment is operated in a proper and efficient manner.

…

Records

…

(A5) Copies of any record or document required to be kept by a condition of this environmental authority must be provided to any authorised person or administering authority on request.

…

Nuisance

(A10) Notwithstanding any other condition of this environmental authority, this environmental authority does not authorise any release of contaminants, which cause or are likely to cause an environmental nuisance beyond the boundaries of the licensed place.”

  1. [26]
    The EA also contains relevant definitions including:

(G10) “environmental harm”

(a)  is any adverse effect, or potential effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value, and includes environmental nuisance.

(b)  may be caused by an activity -

(i)  whether the harm is a direct or indirect result of the activity; or

(ii) whether the harm results from the activity alone or from the combined effects of the activity and other activites or factors.

(G11) “environmental nuisance” is unreasonable interference or likely interference with an environmental value caused by—

(a)  noise, dust, odour, light; or

(b)  an unhealthy, offensive or unsightly condition because of contamination; or

(c)  another way prescribed by regulation.”

  1. [27]
    Section 9 of the Act defines “Environmental value” as follows:

“Environmental value” is –

(a) a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety; or

(b) another quality of the environment identified and declared to be an environmental value under an environmental protection policy or regulation.”

  1. [28]
    I had the advantage of extensive affidavit and documentary evidence, as well as oral testimony from lay and expert witnesses. I also had the advantage of a site inspection to understand the evidence.
  1. [29]
    Expert witnesses impressed me with their detailed examination in difficult forensic circumstances, without the benefit of observing the facility in operation. I accept their evidence as being objectively reliable and credible. I also found the council and lay witnesses to be credible and I have no hesitation accepting their testimony discussed topically below.
  1. [30]
    In contrast, I found the appellant and Mr Cuthbert, guarded, vague and incredible in their testimony. The appellant demonstrated a surprising lack of knowledge and interest in the operation, preferring to defer to her husband Mr Cuthbert. Mr Cuthbert was the day-to-day to manager and operator of the facility. It seemed to me that his evidence, especially his oral testimony, was fashioned to promote self-preservation rather than giving a frank and open account of his conduct. I have difficulty accepting any of the evidence of either the appellant or Mr Cuthbert unless it is consistent, obvious, undisputed or corroborated by objective fact.

Air Quality

  1. [31]
    The relevant conditions of the EPO are:-

“Noxious or Offensive Odour

(B1) Notwithstanding any other condition of this environmental authority no release of contaminants from the licensed place is to cause a noxious or offensive odour beyond the boundaries of the licensed place.

Dust and Particulate Emissions

(B2) No dust or particulate matter shall be permitted to emanate beyond the boundaries of the licensed place which can have an adverse effect on people living in or using the surrounding area.

...

Spray Painting

(B6) No spray painting is permitted in the open.  Spray painting must be carried out within a spray booth approved by the administering authority.”

  1. [32]
    The Environmental Protection (Air) Policy 2008 also defines the following environmental values; however, that policy was adopted after the EA, having commenced on 1 January 2009 repealing the original policy first.  The EA contains the following relevant definitions:

(G14) “noxious” means –  harmful to health or physical well being.

(G15) “offensive” means – causing unreasonable offense, is unreasonably disagreeable to the sense; is disgusting, nauseous or repulsive.

  1. [33]
    Bishop Parade is a residential area with homes proximate to the appellant’s activity. Publicly accessible areas border the slipway on the Road Reserve of Bishop Parade. The site is also publicly accessible from Elimbah Creek.
  1. [34]
    I had the advantage hearing evidence from lay witnesses Mr Ross and Mrs Hudson. They provided the best evidence in relation to odour, dust, fumes and noise detected at their homes. They respectively authored complaints to the council on behalf of themselves and their residential community group, which was supplemented by their affidavit and oral testimony. They gave impressive, forthright and candid testimony of their experiences living proximate to the appellant’s operation. I have no hesitation accepting their evidence.
  1. [35]
    Mr Galvin, an odour expert, did not have the benefit of inspecting, monitoring or testing the active operation. Instead, he gave expert evidence in relation to air quality, reliant upon complaints lodged by nearby residents, Mr Ross and Mrs Hudson.  I accept Mr Galvin’s evidence that the receiving environment is a sensitive environment in the context of air quality.[10]

Noxious or Offensive Odour

  1. [36]
    The operation includes the spraying of anti-foul, the use of fibreglass resins, thinners and two-pack paint. I accept Mr Galvin’s evidence that these products are odorous and can produce a noxious odour, likely to cause offence to most people. Fibreglass resins typically contain styrene, which is used to change the viscosity of the resin. Styrene odour can be detected at relatively low levels.[11]
  1. [37]
    Mr Galvin opined that the primary risks of environmental harm from air quality, which could lead to environmental harm, were associated with the application and drying of paints and chemicals and chemical emissions from the handling, application, drying and storing of paints and chemicals. He gave evidence that if the use of chemicals at the site is not managed appropriately, there is a risk of harm or nuisance depending on the concentration of chemicals in the air. Low concentrations of chemicals can lead to odour nuisance, higher concentrations can lead to health impacts.[12]
  1. [38]
    The complaints sent to the council about fumes and odour generated by the operation at sensitive receptors[13] included photographic evidence of:
  1. Fibre glassing in the open area with no screens, resulting in fumes from the fibre glassing encroaching on to other properties forcing the occupants to close doors and windows.[14]
  1. Anti-fouling in the open without screens resulting in fumes from the anti-fouling escaping into the surrounding residential area on the Australia Day Public Holiday.[15]
  1. Anti-fouling without screens resulting in significant discomfort to the occupants who were concerned about the product sheet for the anti‑fouling stating “not to be inhaled”.[16]
  1. [39]
    Although both the appellant and Mr Cuthbert gave evidence that a spray booth in the form of tarpaulins was used, their evidence was contradicted by other evidence. The photographs show that spray painting, anti‑fouling and fibre glassing take place in the open.  Even when fibre glassing and anti-fouling was carried out in a spray booth or enclosure, such measures proved ineffective from the perspective of the occupiers of nearby homes.  Mrs Hudson deposed that she was concerned about the impact this may be having on her husband’s already poor state of health.[17]  She said that the fumes and odour regularly caused her husband to close the doors or windows of their home.  Mr Ross also deposed to regularly needing to close the windows etc. in his house to escape the smell of the operations fumes or odour.   His house is not air-conditioned.  He too was concerned about the health of residents in the area, including himself.  Mr Ross identified the spray painting, including the application of anti‑foul, as the main source of the odours.[18]
  1. [40]
    Mr Galvin’s opinion corroborated the residents’ evidence that the operation would frequently emit detectable odour at or beyond the boundary, such that it would be offensive to most people at their home or in public locations proximate to the Lot 1 boundary.[19]
  1. [41]
    I also accept the evidence of Mr Galvin that the tarpaulins would be ineffective in controlling the release of dust, particulate matter and odours because the open sides and absence of a roof provide sufficient opportunity for those things to escape. Even if the wind is blowing into the area surrounded by tarpaulins, it will cause turbulence that will allow dust, particulate matter and odours to travel out of the tarpaulin-enclosed area. Odour would not be adequately controlled by either the tarpaulins or the fence around the slipway on Lot 1.[20]
  1. [42]
    I am satisfied that, in the course of the operation of the ERA, the appellant released contaminants which caused a noxious or offensive odour beyond the boundaries of her premises in breach of Condition B1 of the EA.

Dust and Particulate Emissions

  1. [43]
    Complaints also concern the emission of dust from sanding, and other operations of the ERA.[21]  The photographic evidence shows sanding and grinding operations take place in the open without vacuum attachments.[22] 
  1. [44]
    Mr Ross has seen dust/particulate matter escaping on multiple occasions from the slipway area and dispersing beyond the appellant’s boundaries. As a former owner and operator of the facility, Mr Ross brings some sophistication to his evidence. At times the dust dispersion beyond the appellant’s boundaries is sufficiently bad that the settled dust/particulate matter becomes visible on the front of Mr Ross’ home.[23]  Again, I find that the tarpaulin arrangement claimed to be used by the appellant, is inadequate to control the emission of dust from the operation.[24]
  1. [45]
    I am satisfied that, in the course of the operation of the ERA, the appellant has released dust/particulate matter beyond the boundaries of the premises in breach of Condition B2 of the EA.

Spray Painting

  1. [46]
    Condition B6 prescribes that spray painting must be carried out within a spray booth approved by the administering authority.
  1. [47]
    The appellant asserts that council officers have approved the tarpaulin spray booth arrangement used in the facility. This is variously shown in the photographs as an arrangement of tarpaulins suspended on three sides around a boat (but not over the top or on a fourth side), or only two sides of a boat.
  1. [48]
    One officer, Ms Gregory, testified that at no time did she authorise spray painting, either in the open or with the tarpaulin arrangement;[25] however, the appellant does not rely upon any authorisation given by Ms Gregory.  Rather, the appellant relies on authorisation granted by other council officers apparently not called by the council.  The appellant argues that the Cuthbert’s evidence was not challenged in this regard.[26] 
  1. [49]
    It seems to me that the appellant misapprehends the effect of the condition, and I reject the appellant’s argument.
  1. [50]
    Put simply, no spray painting activities are authorised by the EA other than within an approved spray booth. The condition charges the “administering authority” with the role of the approval.  That authority is defined in Schedule G as the Caboolture Shire Council, which includes its successor the Moreton Bay Regional Council.  The CEO Certificate establishes that there is no record of any approval granted by the council pursuant to Condition B6 of the EA.[27]
  1. [51]
    Some informal “authorisation” by a council officer is clearly insufficient to satisfy the condition.  Further, a council employee cannot otherwise authorise a breach of the EA.  A public authority cannot be estopped from doing its public duty.[28]  An effective and enforceable amendment of the EA is governed by the Act.[29]
  1. [52]
    I do not accept that the tarpaulin arrangement constitutes a spray booth as required by Condition B6. I also reject the appellant’s evidence of council authorisation. In any event the tarpaulin arrangement has proved ineffective in the control the release of dust, particulate matter and odours emitted by spray painting.[30] 
  1. [53]
    In the absence of an authorised spray booth, all spray painting in the open areas of the facility has been conducted in breach of Condition B6. I am satisfied that in the operation of the ERA, the appellant is in breach of B6 of the EA.

Noise

  1. [54]
    Conditions A10 and E1 of the EA relevantly provide:

“Nuisance

(A10) Notwithstanding any other condition of this environmental authority, this environmental authority does not authorise any release of contaminants, which cause or are likely to cause an environmental nuisance beyond the boundaries of the licensed place.”

“Emission of Noise

(E1) In the event of a complaint about unreasonable intrusive noise being made to the administering authority, and the administering authority considers that the complaint is not frivolous or vexatious, then the emission of the noise from the licensed place must not result in levels greater than those specified in Table 1 of the Noise Schedule.

SCHEDULE E TABLE 1

NOISE LEVELS AT A NOISE SENSITIVE PLACE

PERIOD

NOISE LEVEL AT A NOISE SENSITIVE PLACE MEASURED AS THE ADJUSTED MAXIMUM SOUND PRESSURE LEVEL

7:00 AM – 6:00 PM

Background noise level plus 5 dB(A)

6:00 PM – 10:00 PM

Background noise level plus 5 dB(A)

10:00 PM – 7:00 AM

Background noise level plus 3 dB(A)

NOISE LEVELS AT A COMMERCIAL PLACE

PERIOD

NOISE LEVEL AT A NOISE SENSITIVE PLACE MEASURED AS THE ADJUSTED MAXIMUM SOUND PRESSURE LEVEL

7:00 AM – 6:00 PM

Background noise level plus 10 dB(A)

6:00 PM – 10:00 PM

Background noise level plus 10 dB(A)

10:00 PM – 7:00 AM

Background noise level plus 8 dB(A)

  1. [55]
    The council also relied upon the Environmental Protection (Noise) Policy 2008 which defines environmental values for the acoustic environment; however, this commenced after the EA, on 1 January 2009. 
  1. [56]
    The EA itself contains the following relevant definitions:

(G9) “commercial place” means – a place used as an office or for business or commercial purposes.

(G10) “noise sensitive place” means any of the following places –

(a)  a dwelling; …

(G12) “intrusive noise” means –

noise that, because of its frequency, duration, level, tonal characteristics, impulsiveness or vibration -

(a)  is clearly audible to, or can be felt by, an individual; and

(b)  annoys the individual.

In determining whether a noise annoys an individual and is unreasonably intrusive, regard must be had to Australian Standard 1055.2 – 1997 Acoustics – Description and Measurements of Environmental Noise Part 2 – Application to Specific Situations.

  1. [57]
    The appellant’s operation of the facility involves (variously) forklift movements, the use of pneumatic hand and power-tools for hammering, grinding, cutting, sanding, scraping, painting, spray painting of anti-foul, water blasting, abrasive blasting, water pressure cleaning, the operation of pumps (e.g. air compressors, water pumps) and the operation of marine motors including outboard motors, which means that a number of noise-producing activities can be expected to occur on a regular basis. The frequency and level of these noises are not typically encountered in a residential environment.[31]
  1. [58]
    The slipway is proximate to residential dwellings, which are recognised by Condition G13 of the EA as noise sensitive places.[32]
  1. [59]
    The separation distance between the slipway and the nearest residences ranges from 14m to 41m. The separation distance between the slipway and the publicly accessible Bishop Parade Road Reserve is merely the width of the fence, a matter of millimetres. These separation distances are significantly less than provided in State Planning Policy 5/10 Air, Noise and Hazardous Materials (250m) and Brisbane City Council’s Environmental Guidelines for Boat Maintaining and Repair (500m).[33]
  1. [60]
    The appellants have constructed a fence around the boundary of Lot 1. However, it has gaps, is of insufficient density to be classed as an acoustic barrier and is of insufficient height to mitigate intrusive noise impacts at sensitive receivers across Bishop Parade.[34]  It seems to me that there is no real effective acoustic shielding or screening of the noise generated by the operations on the slipway.[35] 
  1. [61]
    Mrs Hudson[36] and Mr Ross[37] gave evidence on this issue, which I accept.  Mrs Hudson described that the noise comes from ratcheting, hammering, drilling, sanding, grinding and water blasting.  She said that when a boat is being worked on, this noise can continue throughout the day.  She testified that she was compelled to call and complain to the council about the noise, and on occasion she was unable to hear the council officer on the phone as a result of the noise from the slipway.  I accept that the noise emanating from the appellant’s activities is such that it interferes with the quiet enjoyment of the area.[38]  Mr Ross described his experience of similar noise impacts including their interference with him watching television inside his home.  I accept that, in his experience, the noise exceeds levels expected in a residential area and has a significant effect on his quiet enjoyment of his property.[39]
  1. [62]
    The experiences of Mrs Hudson and Mr Ross were well corroborated by the objective expert evidence of Mr Goodfellow.
  1. [63]
    Mr Goodfellow measured the background noise level environment surrounding the premises for the purposes of the previous proceedings. There have been no changes since then. Whilst, the noise levels were not recorded I accept that Mr Goodfellow has a reliable recollection of them.[40]  The background noise level environment surrounding the premises is low.  In Mr Goodfellow’s opinion, the background noise levels surrounding the premises would be in the order of 36 to 37 dB(A) during the daytime (7 am to 6 pm) and 28 to 30 dB(A) during the evening (6 pm to 10 pm) and night time (10 pm to 7 am).[41] 
  1. [64]
    Based on these background noise levels, Mr Goodfellow set out noise level limits as defined in the EA for a sensitive receiver.[42]  These show that component noise limit for the ERA activity would be:
  1. 39 dB(A) in the day time (7 am to 6 pm),
  1. 33 dB(A) in the evening (6 pm to 10 pm) and
  1. 30 dB(A) in the night time (10 pm to 7 am).
  1. [65]
    Mr Goodfellow also provided typical noise level ranges for some of the operations of the slipway.[43]  These were corrected to provide an estimate of the potential noise levels of the sensitive receiver locations, S1 to S3 (the three closest residences) without noise mitigation.
  1. [66]
    By comparing the component and potential noise levels for ERA activity, the predicted noise levels from the operations of the slipway represent exceedance of the limit by a minimum of 16dB(A) to 38dB(A);[44] well above a 5dB tolerance threshold, such that annoyance is significant.[45]
  1. [67]
    I accept the evidence of Mr Goodfellow that acoustic mitigation (barriers or enclosures) can provide reasonable and practical measures to minimise intrusive noise.[46]  The appellant’s current screening or mitigation measures on Lot 1 have proved inadequate to prevent or minimise environmental harm arising from noise emissions to the surrounding environment.[47] 
  1. [68]
    I find that the current operation releases noise contaminants beyond the boundaries of the premises at such a level as to be likely to result in environmental harm; and it is highly likely that the acoustic levels prescribed in Condition E1 are exceeded by the appellant’s operations.[48]  This is consistent with the evidence of the complaints of Mrs Hudson and Mr Ross, which I find describe unreasonable intrusive noise, and are neither frivolous nor vexatious.
  1. [69]
    I am satisfied that the appellant has failed to comply with Conditions A10 and E1 of the EA in the conduct of the ERA.

Water

  1. [70]
    The relevant conditions of the EA are Conditions C1 and C2.

“Release of Contaminants to Waters

(C1) Contaminants must not be directly or indirectly released from the licensed place to any waters except:

 (i) as permitted under a Stormwater Management Plan approved by this administering authority; or

 (ii) to a sewer as permitted or otherwise agreed from time to time by Caboolture Shire council’s Caboolture Water Unit.

Stormwater Management –

Contamination of Rainfall and Stormwater Runoff

(C2) Except as otherwise provided by the conditions of the Water Schedule for this environmental authority, the environmentally relevant activity must be carried out by such practical means necessary to prevent and/or minimise the release or likelihood of release of contaminated runoff from the licensed place to any stormwater drain or waters or the bed or banks of any such waters. ‘Contaminated runoff’ for the purposes of this condition means any waters, (and included stormwater and/or stormwater runoff) that contains contaminants that may cause environmental harm.”

  1. [71]
    The facility is adjacent to Elimbah Creek near the Pumicestone Passage.
  1. [72]
    Surrounding the facility is a sensitive environment part of the Ramsar Convention Wetland, which includes a high ecological significance wetland, a wildlife habitat, a marina park and a declared fish habitat. It is part of the coastal management district, proximate to protected areas and is in a conservation zone.[49]
  1. [73]
    An Environmental Protection (Water) Policy 2009, Pumicestone Passage Environmental Values and Water Quality Objectives July 2010 describes the environmental values of Elimbah Creek as including: Aquatic ecosystems; Seagrass; Irrigation; Farm supply use; Stock water; Aquaculture; Human consumer; Oystering; Primary recreation; Secondary recreation; Visual recreation and Cultural and spiritual values.
  1. [74]
    The risks of the release of the contaminants from the slipway are obvious, and are set out by Mr Bristow at paragraph 17 of his affidavit as follows:[50]

“Uncontrolled and ill-managed runoff and/or stormwater release from the slipway has the potential to impact upon the following values:

17.1 Aquatic ecosystems;

17.2 Seagrass;

17.3 Aquaculture;

17.4 Human consumer;

17.5 Primary recreation;

17.6 Secondary recreation;

17.7 Visual recreation; and

17.8 Cultural and spiritual values.

This can cause environmental harm, particularly when that runoff or release is laden with contaminants.  Relevant contaminants include solids, biota (such as barnacles, worms, and weeds.  It could also include introduced species) and chemicals (including heavy metals, Tributyltin, paint and paint chips, antifoulant, oil and fuel, and their by‑products such as polyaromatic hydrocarbons).

  1. [75]
    In the previous proceedings involving the ERA (P & E Appeal Nos 237 of 2009 and 1664 of 2010)[51] substantial expert opinion was admitted including joint expert reports prepared for hydrology; aquatic issues and ecology.    The appellant’s expert consultants, Gilbert and Sutherland, prepared a site based stormwater management plan and her consultants BMT WBM prepared a revised stormwater management plan.[52]  Unsurprisingly, the council has drawn on this material to draft the relevant requirements in the EPO.
  1. [76]
    The appellant has never sought nor obtained council approval of a stormwater management plan pursuant to condition C1(i). Similarly, there has never been any agreement to release contaminants to any sewer pursuant to condition C1(i). It must then follow that, in the absence of a requisite management plan or agreement, any contaminated runoff from the appellant’s operation would breach condition C2.
  1. [77]
    There is no issue about releasing contaminants into the sewer. The question is whether the appellant has permitted such contaminated runoff into Elimbah Creek.
  1. [78]
    The council relies upon the physical state of Lot 1, observations by council officers, and the expert evidence of experts Dr Thorogood and Mr Bristow. Both impressed me with the careful and thorough work. Mr Bristow is a chemical engineer specialising in water quality, water and wastewater treatment, hydrology and stormwater. Dr Thorogood is an ecologist with expertise in coastal ecology, fisheries science and aquatic ecotoxicology. They provided uncontradicted evidence supported by their analysis of the sampling regime, which showed different concentrations of contaminants at different levels adjacent to Lot 1, compared to other areas of Elimbah Creek.
  1. [79]
    The appellant denies that her activities have released any contaminants into Elimbah Creek. The appellant’s submissions are critical of the expert evidence as being entirely dependant upon the sampling results, which are explicable having regard to historical contamination before the appellant’s acquisition of the facility, mixing of sediment by human movement and earthworks disturbance in August/September 2014. Even so, it is argued that a mere possibility of the appellant contributing to the contamination does not satisfy the normal civil standard of proof, let alone the Briginshaw standard.  The appellant’s submissions are also critical about the quality of the expert evidence in reliance upon the remarks of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [87].
  1. [80]
    I disagree with the appellant’s arguments for the following reasons.
  1. [81]
    Mr Bristow and Dr Thorogood carefully and purposely developed the sampling program.[53]  Various samples were taken from mapped locations, including:[54] 
  1. Background samples from Bullock creek to the north (at locations 8 & 9).
  1. Samples from in front of the slipway (at location 5, including 5.1, 5.2, 5.3) in Elimbah Creek.
  1. Samples from the bank opposite the slipway (at location 4).
  1. Samples from upstream and downstream of the slipway in Elimbah Creek (at locations 1, 2, 3, 6, 7, 10 & 11).
  1. [82]
    The results of the analysis of the core samples taken from sites 5.1, 5.2 and 5.3 for strata 0-5mm, 0-200mm and 200-400mm are set out in the table below, with the highest concentration of a contaminant within a stratum represented in bold:

 

Cu

Pb

Zn

TBT

Benzo(b)fluoranthene

 

5.1

5.2

5.3

5.1

5.2

5.3

5.1

5.2

5.3

5.1

5.2

5.3

5.1

5.2

5.3

0–5

45

226

1950

18

18

41

81

160

690

1.7

28.1

31.0

<0.1

<0.1

<0.1

0-200

310

623

496

100

55

33

1180

696

418

41.0

247.0

371.0

0.21

<0.1

<0.1

200-400

139

9120

1050

22

68

76

132

2230

433

-

-

-

<0.1

0.92

0.44

  1. [83]
    Contaminants, including heavy metals, tributyltin (TBT), polyaromatic hydrocarbons (PAH) and petroleum hydrocarbons (TPH), exposed by these results are pollutants deriving from paints, anti‑fouls and oils used in slipway operations.  The concentrations found are well above the environmental investigation threshold set down by the ANZECC guidelines for fresh and marine water quality and sediments and for copper above NEPM health investigation threshold for residential use.  Copper and TBT are particularly lethal to living organisms and at the concentrations reported are expected to be lethal to benthic fauna. PAH and TPH are also harmful in the environment.[55]
  1. [84]
    Mr Bristow interpreted the test results[56] of the sediment samples this way:

“16. The tin concentration identified in the testing of sediment samples from 23 June 2015 has been confirmed as tributyltin in significant concentrations ranging from 1.7-371ugSn/kg in the at-surface samples and near surface samples.

17. The heavy metals of concern (Copper (Cu), Lead (Pb), Zinc (Zn), Tin (Sn)) were also found in sediments shallower and deeper than sampled on 23 June 2015.

18. Concentrations of these metals were unremarkable in all samples, except those taken from in front of the slipway at site 5.

19. The sediments from across the toe of the slipway at depth (200-400mm) all contained elevated concentrations of copper, lead, zinc and tin.  These metals were found in concentrations that all exceeded reported background concentrations for the reference sites and the upstream and downstream sampling locations.  Concentrations of copper and zinc exceeded ANZECC ISQG higher trigger values in the centre and western portion of the slipway (sites 5.2 and 5.3) and lead concentrations exceeded the ANZECC ISQG low trigger values.

20. Copper, zinc and tin were particularly concentrated in the centre of the slipway (site 5.2) with 2-15 times higher concentrations than found in the near surface samples of 23 June 2015.  Copper was reported at a concentration that exceeded the NEPM health investigation limits for Residential A land use.  Copper and zinc also exceeded the Environmental Investigation Limits (EIL) for ecologically significant and residential areas.

21. The at surface sediments from the toe of the slipway also showed elevated concentrations of copper, lead, zinc and tin, although there was some demagnification of the concentrations against the near surface samples of 23 June 2015.

22. Poly Aromatic Hydrocarbons (PAHs) were found again only in samples recovered from the toe of the slipway (site 5) but only in the subsurface samples in any significant concentration.

23. PAHs were not detected in the at-surface samples.

24.  The deeper subsurface samples (200-400mm) were much higher in PAHs compared to the near surface results from 23 June 2015 and contained significantly more PAH.

25. The sub surface sediment (200-400mm) from the toe of the slipway, also contained petroleum hydrocarbons (TPH) from the C16-C36 fraction with 121 and 191 mg/kg being identified in two of the sample locations (sites 5.2 and 5.3).  These results indicate that diesel, engine oil or fuel oils have been entombed in the deeper sediments from earlier operation of the slipway. …

27. The pH of the sediments was reported to be neutral to alkaline and salinities equivalent to seawater as expected.  The neutral to alkaline pH coupled with the salinity of the sediments will assist in minimising the mobility of the contaminants and help to constrain them to the near local environment, except in flood conditions when higher sediment transport is likely to physically relocate surface contamination.

Environmental Effects and Impacts on Humans

28. The contaminants (copper, lead, zinc, tin tributyltin, poly aromatic hydrocarbons and petroleum hydrocarbons) found in the sampling of the sediments at the toe of the slipway are all environmental toxicants that will have a detrimental effect on the Environmental Values of Elimbah Creek.

29. These contaminates are all signature pollutants from slipway operations, deriving from plants, antifoulants, fuels and oils.

30. The heavy metals are present in concentrations well above the environmental investigation thresholds set down by the ANEZECC guidelines for fresh and marine water quality (and sediments) and for the copper above the NEPM health investigation threshold for residential A and use.

31. The full extent of the contamination of sediments in front of the slipway has not been fully mapped, but it does not extend to the opposite bank and there is no evidence of it being transported any significant distance upstream or downstream.  The extent of the contamination towards the centre of the creek is unknown and would require further sampling and testing to quantify.

32. The contamination plume is likely to be local and constrained to the area in front of the slipway itself.

33. The contamination extends to a depth of at least 400mm, possibly deeper.

34. Copper and TBT are particularly lethal to living organisms and at the concentration reported are expected to be lethal to benthic fauna.  PAH and TPH are also lethal in the environment.

35. Zine and lead are toxicants that are less lethal than copper and TBT and are more likely to cause chronic illness in humans as well as animals.

36. All of these contaminants bio-accumulate in the environment.”

  1. [85]
    Mr Bristow opined that the source of contamination is the slipway operation at 48 Bishop Parade, Toorbul.[57]  Mr Bristow's unchallenged evidence was that he was "not aware of any evidence that would suggest that the concentration of contamination found at the toe of the slipway could be from any source other than the slipway operation itself".[58]
  1. [86]
    Similarly, Dr Thorogood opined that:

“28. Based on the overall results of analyses of sediment and mangrove leaves, taken from a variety of locations within Elimbah and Bullock Creeks, it is almost certain that the significant contamination (including TBT) found adjacent to the slipway has come from operations undertaken at the slipway.

29. The contamination that has occurred has adversely impacted the environmental values of the receiving environment by the introduction of elements and compounds that are highly toxic to aquatic flora and fauna.  In addition to the direct impacts on these organisms, toxic contaminants have entered the food chain, and may potentially contaminate species of fish, crabs and prawns caught and consumed by recreational fishers.”[59]

  1. [87]
    Mr Bristow and Dr Thorogood were challenged in cross-examination about the potential for deep contaminated sediments mixing with uncontaminated surface sediments by:
  1. People shuffling, walking or wading through the sediments;
  1. Slipping boats onto and off the slipway rails;
  1. Sediment being stirred up during the slipway rebuild; and
  1. The tide, creek flows and wind action. 
  1. [88]
    Both Dr Thorogood and Mr Bristow were undeterred in their opinions that the contaminants found in the surface scrape layer (0-5mm) and the at-surface layer (0-200mm) are likely to reflect the impact of the slipway operation during the ownership of the appellant.
  1. [89]
    Whilst, Mr Bristow entertained the possibility that mud at 100mm from the surface depth could be disturbed by people moving around the slipway, he refused to accept that mud from half a metre deep could be stirred up and brought to the surface.[60]  Mr Bristow maintained that:  “The age of the contaminants is indeterminate from the test results and analysis undertaken to date.  However the presence of significant concentrations of copper and zinc and lower concentrations of tin, may suggest the contamination is more recent (occurring within the last 5 to 10 years).”[61]  Mr Bristow opined that the contamination found at depth and in the near-surface muds indicates contamination that has occurred chronically over many years, including more recently after 2005 and more likely in the last five years.[62]
  1. [90]
    Dr Thorogood testified that:

"Now, because I was interested in, explicitly, the issue that you’re now raising, the most recent period of time, let’s say somewhere between a small number of months – again, using my professional expertise and judgment, somewhere between a month and maybe six months, we took that surface scraping of sediment, something that was approximately 5 mil thick, give or take."[63]  …

"- - - so we don’t go over previous grounds, that, obviously, depends upon there being no mixing of that - - -?---That’s right.

- - 5 mil level?---That’s right. But I would be confident that has been deposited in the last 12 months."[64] …

“And the third conclusion that I draw from the data is that, whilst I don’t believe it’s possible to accurately or precisely age, if you like, the sediment by depth, it is self-evident that the sediment at the top has been deposited more recently than the sediment lower down and that the deposition of sediment that comprises both the very surface layer, a few millimetres, and the near surface layer of 0‑200mm is reasonably likely to have coincided with the operations as practised at the slipway coincident with the current ownership; that is, over approximately the last 10 or 15 years.”[65]  …

“I would make the comment that at 5.1, because I’ve personally sampled 5.1, there is relatively little prospect of mixing in that below – of all the sites that I sampled – and I suspect it’s because it’s such proximity to that particular mangrove, below a relatively thin layer of soft sediment, I struggled to push the core into a much harder more compact layer of sediment.  It clearly wasn’t being disturbed.  So of those three sites I could very confidently say that there is not mixing occurring at 5.1.”[66]

  1. [91]
    Dr Thorogood’s evidence is that the contaminants found in the surface scrape (0-5mm) would have been deposited "somewhere between a month and maybe six months” ago;[67]  “... I would be confident that [the 0-5mm scrape] has been deposited in the last 12 months"[68]; and the contaminants in the surface layer (0-200mm) are likely to reflect the impact of the slipway operation during the ownership of the appellant.[69]
  1. [92]
    I accept this evidence of Mr Bristow and Dr Thorogood, which is consistent with the objective evidence of the sampling test results.
  1. [93]
    The results at site 5.2 (directly downslope of the collection pit across the slipway) show that the concentration of copper, lead and zinc was highest in the 200-400mm stratum and higher in the 0‑200mm stratum than in the 0-5mm stratum.  This pattern of contaminant distribution may be consistent with mixing and may reflect an elevated level of activity, and hence disturbance of the sediment, directly downslope of the cradle and collection pit; however, the results of analysis of core samples taken from sites 5.1 and 5.3 across the toe of the slipway are not consistent with the strata of deposited sediment having been subsequently mixed.
  1. [94]
    At site 5.1 the concentrations of copper, lead and zinc and some hydrocarbons are significantly higher within the 0-200mm stratum than in the 200-400mm stratum. Dr Thorogood described this site as being a harder, more compacted layer of sediment and a very stiff material below approximately 50-75mm depth.[70]  At site 5.3 (the site closest to the jetty) the concentration of copper, lead and zinc is higher in the 0‑5mm stratum than in the 0‑200mm stratum.  This site is not susceptible to mixing.
  1. [95]
    It seems to me that these results show that mixing has not occurred at either side of the toe of the slipway (sites 5.1 and 5.3). The concentration of contaminants including copper, lead, zinc and TBT in the upper 200mm of sediment, and particularly in the upper 5mm of sediment, is compelling evidence of recent contamination on the appellant’s watch.
  1. [96]
    This is consistent with the appellant’s poor site and stormwater management since acquisition of the facility in 2002, including the following:
  1. The appellant has never sought approval of a stormwater management plan in accordance with condition C1 of the EA, which could control the release of waters from the slipway.
  1. The appellant has never used an authorised spray booth, and the incomplete tarpaulin arrangement is inadequate for the removal of bio-fouling, paint and anti-foul. 
  1. Mr Cuthbert told Mr Manley that he did not use drop sheets for sanding as he relied on the use of vacuum sanders.[71] However, the complaints documents refer to sanding without vacuum sanders.[72]
  1. The unchallenged evidence of Mr Bristow is that the sump wastewater in the holding tank is likely to be contaminated with both suspended and dissolved contaminants.[73]
  1. In February 2011, Dr Thorogood observed paint particles on the slipway below the catch drain and on 26 June 2015, Dr Thorogood observed paint of various colours on the slipway, both above and below the catch drain, and on the walls flanking the slipway, also above and below the catch drain.[74]
  1. On Mr Bristow’s first inspection, he was able to observe residuals of paint chips in the cracks in the slipway concrete.[75]
  1. There is no interception of stormwater from outside the slipway.
  1. The sump pump does not operate automatically.  The drain complex fills with tidal water "once a week or it might be once a fortnight depending on the – the height of the tide at the time".[76]  Notwithstanding that, Mr Cuthbert said he did not stop the drain overflowing, and that it overflowed when it rained or if high tide came in.[77]  The contaminated sediment in the drain was only cleaned out by digging it out with a shovel every couple of months.[78] 
  1. Groundwater also enters the drain complex,[79] which again can cause uncleaned material to escape out of the drain and sump and into Elimbah Creek.
  1. The slipway is pressure cleaned using a high-pressure water blaster below the collection pit, which washes material, including contaminants from below the catch drain, into Elimbah Creek.[80]
  1. There is no protected or enclosed workspace for longer vessels that, because of their size, have to overhang the interceptor drain.  Mr Cuthbert gives varying versions regarding whether or not work is undertaken below the drain and whether dust below the drain is swept back into the drain or picked up and bagged.[81]
  1. The work area of the slipway (including the collection drain and sump) are periodically inundated by the high tide, which flushes contaminants into the sediment and waters of the creek as the tide recedes.
  1. Mr Cuthbert used a pressure cleaner to pressure clean the slipway below the collection pit[82] to avoid clients slipping on the mud.[83]  In doing so, any contaminants on the slipway would be washed into the creek.
  1. On 8 September 2010 Sue Gregory observed and photographed paint chips on the ground of the slipway and floating in the water nearby. At the time of the visit there was no observed method present for preventing dust/paint chip fragments from entering the waterway.[84]  I accept her evidence in preference to the appellant and her husband.
  1. Notwithstanding the assertion that screens are used when fibre glassing takes place,[85] it is clear from the CEO Certificate that fibre glassing takes place in the absence of the screens.[86]
  1. [97]
    In my view, the appellant has not implemented any practical means necessary to prevent or minimise the release of contaminants into the waters, bed or bank of Elimbah Creek. The appellant’s operations seem ad hoc and haphazard in the absence of any stormwater management plan. Indeed, through wind, uncontained post‑cleanup washing and unintentional stormwater flushing, unlawful contamination of the creek is almost inevitable.  Whilst, the contamination of Elimbah Creek has occurred chronically over many years, I find that it has continued since the appellant acquired the facility in 2002, and more likely in the last five years.[87]
  1. [98]
    Consequently, I am satisfied that the appellant’s operation of the slipway causes or permits contaminants to be directly and indirectly released into Elimbah Creek in breach of Condition C1 and Condition C2 of the EA and that actual harm is being caused. Further, in the absence of a requisite management plan or agreement, any future contaminated runoff from the appellant’s operation will breach condition C2.

Land

  1. [99]
    Condition D1 provides:

“Release of contaminants to land

D1 There must be no release nor likely release of any contaminants to land.”

  1. [100]
    A catch drain and sump pit has been installed near the base of the slipway to collect contaminated water from the slipway. This contaminated water from the slipway is either water runoff from the slipway due to washing, rainfall, stormwater or water ingress due to tidal inundation. Mr Cuthbert told Mr Manley during the May 2014 inspection that the sediment in the drain was only cleaned out by digging it out with a shovel every couple of months.[88]  Water from the catch drain and the sump pit is manually pumped out to the collection tank beside the slipway rails.  The water from the tank is then pumped through a hose, which runs across Bishop Parade, and the water is irrigated on some palm trees towards the rear of Lot 20.[89] 
  1. [101]
    I accept Ms Gregory’s evidence that she expressly advised the appellant and Mr Cuthbert that it was inappropriate to empty the collection tank on the Lot 20 garden.[90] 
  1. [102]
    The appellant is critical of the council failing to test the water in the collection tank, to show it is contaminated, and in turn to show that the water placed on the gardens is contaminated.  The appellant has made no attempt to show otherwise, and any attempt to do so would have been counterintuitive and disingenuous.
  1. [103]
    The only sources of the tank water are the catch drain and the sump pit designed to collect contaminated water from the slipway. Its very purpose is to collect and store contaminated water. Indeed, if the appellant and Mr Cuthbert are to be believed that no contaminated runoff enters the creek, the tank is the only receptacle for contaminated water from the slipway.
  1. [104]
    It seems logically obvious, that the irrigation of stored sump wastewater, is likely to result in contaminants (both suspended and dissolved) being released to the land in the “garden” of Lot 20.  I accept Mr Bristow’s evidence that over time these contaminants will accumulate to concentrations that will become toxic to plant life and result in a contaminated site on Lot 20.[91] 
  1. [105]
    In any event, I accept the council’s submission that no employee of the council can consent to, or authorise, a breach of the EA. Further, a public authority cannot be estopped from doing its public duty.[92]  An effective and enforceable amendment of the EA is governed by the Act.[93]
  1. [106]
    Therefore, I am satisfied that the irrigation of the tank water from the drain and pit constitutes a release, or likely release, of contaminated water onto the land in breach of condition D1 of the EA.

Waste Management

  1. [107]
    The relevant conditions provide:

“(F1) Waste must not be released to the environment, stored, transferred or disposed of contrary to any condition of this environmental authority.

…

(F3) All waste shall be removed to an approved waste disposal facility or approved waste recycling facility by a licensed waste transporter.

(F4) Where waste is taken off site, the holder of this environmental authority must monitor and record the:

 (i) date, quantity and type of wastes removed;

 (ii)  waste receiving operator that removed the wastes off‑site; and

 (iii) destination of the waste.”

  1. [108]
    Mr Cuthbert told Mr Manley during the May 2014 inspection that the sediment in the drain was only cleaned out by digging it out with a shovel every couple of months.[94]  He said that that “sludge from the waste drain is pumped out into drums, dried and then taken to the dump”.[95]  Further, he explains that the waste from the sanding and scraping of the paint and anti‑foul on the hulls is collected and delivered to the local Toorbul waste transfer station.  Mr Cuthbert was unable to say when he arranged for the collection tank to be pumped out: he said he did not know and that he would not have a clue whether he had records for when it was last pumped out.[96]
  1. [109]
    This waste is “regulated waste” pursuant to Schedule 7 Part 1 of the Environmental Protection Regulation 2008 as it includes waste from the use of paint, copper and hydrocarbons.[97]
  1. [110]
    The appellant acknowledges that those arrangements undertaken, which she apparently thought were previously endorsed by council officers, are not appropriate.  I reject her evidence that the arrangements were so endorsed, and I have no confidence in her willingness to comply in the future. 
  1. [111]
    It is clear to me, and I find, that the appellant’s waste management arrangements breach Condition F3 of the EA. Further, in breach of Condition F4, the appellant has no recent records of waste being taken off site.[98]

Has the appellant breached the general environmental duty?

  1. [112]
    The general environmental duty is set out in s 319 of the Act which provides:

“319 General environmental duty

(1) A person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm (the general environmental duty).

(2) In deciding the measures required to be taken under subsection (1), regard must be had to, for example –

 (a) the nature of the harm or potential harm; and

 (b) the sensitivity of the receiving environment; and

(c) the current state of technical knowledge for the activity; and

(d) the likelihood of successful applications of the different measures that might be taken; and

(e) the financial implications of the different measures as they would relate to the type of activity.”

  1. [113]
    “Environment” is defined in s 8 of the Act as:

“Environment includes—

(a)  ecosystems and their constituent parts, including people and communities; and

(b)  all natural and physical resources; and

(c)  the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony and sense of community; and

(d)  the social, economic, aesthetic and cultural conditions that affect, or are affected by, things mentioned inparagraphs (a) to (c).”

  1. [114]
    “Environmental harm” is defined in section 14 as follows:

“14 Environmental harm

(1) Environmental harm is any adverse effect, or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value, and includes environmental nuisance.

(2) Environmental harm may be caused by an activity –

(a) whether the harm is a direct or indirect result of the activity; or

(b) whether the harm results from the activity alone or from the combined effects of the activity and other activities or factors.”

  1. [115]
    Section 9 defines “Environmental value” as follows:

“Environmental value is –

(a) a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety; or

(b) another quality of the environment identified and declared to be an environmental value under an environmental protection policy or regulation.”

  1. [116]
    An “Environmental Nuisance” is defined in s 15 of the Act as:

“Environmental nuisance is unreasonable interference or likely interference with an environmental value caused by—

(a)  aerosols, fumes, light, noise, odour, particles or smoke; or

(b)  an unhealthy, offensive or unsightly condition because of contamination; or

(c)  another way prescribed by regulation.”

  1. [117]
    The nature and scope of the EPO requirements have been drafted in accordance with the expert evidence about the:
  1. Nature of the harm or potential harm;
  1. Sensitivity of the receiving environment;
  1. Current state of technical knowledge for the activity;
  1. Likelihood of successful applications of the different measures; and
  1. Financial implications of the different measures for the type of activity.
  1. [118]
    Whilst am satisfied about each of factors 1 to 4 in relation to the EPO and more generally, I am left with uncertainty about the financial implications of the required measures prescribed in the EPO for each type of activity. 
  1. [119]
    With respect to the physical works and/or upgrades to the facility, Mr Bristow estimated the costs of the three principal measures as follows:[99]
  1. The portable enclosure (spray booth) for sanding, grinding and painting, to ensure the maximum containment of paint, dust and particulate matter - $25,000;
  1. To renew the degraded eastern portion of the slipway ramp and extend the drain to include that portion of the slipway ($8,500 plus $5,000) - $13,500; and
  1. To install a clearwater wastewater treatment plant (to enable collected waste water to be reused in the operation) - $15,000.
  1. [120]
    In my view the financial implications cannot be considered in a vacuum, or at least in isolation of associated labour costs, disruption and delay costs. I am unable to form a concluded view about such things in the context of implementation of the proposed EPO.
  1. [121]
    Nevertheless, the appellant remains obliged to comply with the EA with all its attendant financial implications of the different measures for the types of activity. It seems to me that the reasonable and practicable measures required to prevent or minimise the harm to acoustic amenity, air quality, water quality and stormwater and aquatic ecology, can be harnessed in a site based management plan and stormwater management plan. Indeed, so much is demonstrated by the Site Based Environmental management plan;[100] and most recent revised stormwater management plan,[101] expertly prepared for the appellant.  These have never been adopted by the appellant, and little or no effort has been made by her, or through Mr Cuthbert, to implement their content.  It was suggested to Mr Cuthbert that the experts he had engaged advised that for the slipway to operate in an appropriate way there would need to be significant upgrade works. Mr Cuthbert responded that "the experts said there had to be – or would need to be but we never agreed with them".[102]  This bespeaks complacency rather than a lack of financial capacity or difficulties to implement the measures addressed in the plans.
  1. [122]
    For the same reasons expressed above in relation to the appellant’s breaches of the EA, I find that she has carried out her activity in a way that causes, or is likely to cause, environmental harm, and in so doing she has breached her general environmental duty.

Is an Environmental Protection Order needed to secure future compliance with the general environmental duty and/or environmental authority?

  1. [123]
    The Court has a residual discretion to issue an EPO. This ought be exercised having regard to the particular circumstances of each case, cognisant of the legislative context of the power.
  1. [124]
    The object of the EPA is set out in s 3 of the Act as follows

“3 Object

The object of this Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).”

  1. [125]
    The object is to be achieved by an integrated management program that is consistent with ecologically sustainable development.[103] This program includes “ensuring all reasonable and practicable measures are taken to protect environmental values from all sources of environmental harm”.[104]
  1. [126]
    Section 358 provides relevantly:

“358 When order may be issued

The administering authority may issue an order (an environmental protection order) to a person – …

(d) to secure compliance by the person with –

(i) the general environmental duty; or …

(iii) a condition of an environmental authority;…”

  1. [127]
    Section 359 of the Act requires the administering authority (here the court) to consider the standard criteria before deciding to issue an environmental protection order. Section 359 provides:

“359 Standard criteria to be considered before issue of order

Before deciding to issue an environmental protection order, the administering authority must consider the standard criteria.”

  1. [128]
    Schedule 4 of the Act relevantly provides:

‘standard criteria means—

(c)  the following principles of environmental policy as set out in the Intergovernmental Agreement on the Environment—

(i)  the precautionary principle;

(ii)  intergenerational equity;

(iii)  conservation of biological diversity and ecological integrity; and

(b)  any Commonwealth or State government plans, standards, agreements or requirements about environmental protection or ecologically sustainable development; and

(d)  any relevant environmental impact study, assessment or report; and

(e)  the character, resilience and values of the receiving environment; and

(f)  all submissions made by the applicant and submitters; and

(g)  the best practice environmental management for activities under any relevant instrument, or proposed instrument, as follows—

(i)  an environmental authority;

(ii)  a transitional environmental program;

(iii)  an environmental protection order;

(iv)  a disposal permit;

(v)  a development approval; and

(h)  the financial implications of the requirements under an instrument, or proposed instrument, mentioned in paragraph (g) as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument; and

(i)  the public interest; and

(j)  any relevant site management plan; and

(k)  any relevant integrated environmental management system or proposed integrated environmental management system; and

(l)  any other matter prescribed under a regulation.’

  1. [129]
    The precautionary principle is found in the Intergovernmental Agreement on the Environment,[105] being:

Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by:

1. careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and

2. an assessment of risk-weighted consequences of various options.

  1. [130]
    For the reasons set out above I am satisfied that the appellant has breached her general environmental duty to the same extent that she has breached EA, in particular her failure to comply with:
  1. Schedule A, Conditions A2, A5 and A10;
  1. Schedule B, Conditions B1, B2, B3 and B6;
  1. Schedule C, Conditions C1, C2, C4 and C5;
  1. Schedule D, Condition D1;
  1. Schedule E, Condition E1; and
  1. Schedule F, Conditions F1, F3, F4.
  1. [131]
    I am satisfied that, in respect of the appellant’s operations since 2002 and through to the present time, there is scientific certainty that the appellant’s operations have caused serious environmental damage. That has been caused by the appellant’s consistent failure to comply with both the conditions of the EA and the general environmental duty.
  1. [132]
    The appellant has had ample opportunity to unilaterally and cooperatively address the environmental issues before and during this proceeding.
  1. [133]
    The appellant did not take heed of the findings of Griffin SC DCJ in the earlier proceedings in relation to environmental matters (which were not disturbed on appeal),[106] nor take account or act on the recommendations of her own experts in those proceedings to improve site based management.
  1. [134]
    The appellant’s husband, and site operator, was evasive and unreceptive to the approach and inspection of the council officer.[107]  Neither the appellant nor her husband showed any interest in addressing the real issues identified in the original decision.
  1. [135]
    The appellant’s resistance continued with an internal review of the original decision on the grounds that:[108]

1 The Notice that has been issued is invalid.

2 The Notice that has been issued and signed by Craig Manley is invalid because he does not have the authority to issue such Notices and does have authority to sign the Notice.

3 The terms and conditions of the particular Order are unworkable.

4 The terms and conditions of the Environmental Protection Order fail to take into account that this is a lawful non-conforming use and that the terms and conditions of the Order are not relevant to this entity or to its business operation.

5 The reference to 48A Bishop Parade, Toorbul is incorrect.

6 All of the conditions relating to the work proposal make it unviable for this business to continue to operate and should therefore if found to be validly issues [sic] (which is denied) be set aside.

  1. [136]
    The appellant’s opportunity to be heard further was facilitated by the internal review process allowed by the council.[109]  Also, the request for an internal review did not stay the operation of the EPO,[110] and the council agreed not to enforce any of the provisions of the EPO during that process.[111]  Further, the council did not oppose the grant of a stay with respect to requirements of the EPO involving physical works and/or upgrades to the facility including the slipway and upgrades to equipment used in the business.
  1. [137]
    The scientific proof shows that contamination of the environment has occurred from the slipway during the period of ownership of the appellant to the extent that environmental damage has occurred. Whilst there is no evidence to suggest that the environmental damage is irreversible, I am in no doubt there is a threat of serious environmental damage as a consequence of the activities of the appellant in the operation of the ERA.
  1. [138]
    In the absence of sufficient ameliorating efforts and adherence to an effective site based management plan, the scientific evidence is sufficient to enable me to conclude that it is likely that the appellant's operations have caused, and will continue to cause, serious environmental damage.[112]
  1. [139]
    I am satisfied that environmental harm and environmental nuisance will continue to occur unless the appellant’s management practices and the ERA infrastructure are significantly improved.
  1. [140]
    The council submits that the options faced by the court in this appeal are simple, being to either impose an EPO upon the operator or not to impose an EPO and allow the status quo to remain.
  1. [141]
    I disagree with that submission. The outcome is not so simple.
  1. [142]
    In my view the EPO issued by the council is unnecessarily restrictive, prescriptive and onerous, with the potential to derogate from the original grant of the EA. This approach has drawn the appellant’s complaint that she has not been afforded natural justice by excluding her rights:
  1. To be provided with written notice of the proposed amendment, outlining the amendment proposed, the grounds for the proposed amendment, the facts and circumstances underpinning those grounds and notice of rights to make representations regarding same pursuant to s 217 of the Act;
  1. To be afforded the time and opportunity to make considered and informed representations to the Respondent in respect of the proposed amendment to the EA having regard to that notice;
  1. To the benefit of the Respondent’s due and proper consideration of those representations pursuant to s 217 of the Act; and
  1. To appeal the Respondent’s decision.
  1. [143]
    In this regard, there is some force in the appellant’s submission that the EPO’s extensive and prescriptive conditions is an attempt by the council to circumvent, or has the effect of circumventing, the strict precursory requirements to change an EA under Chapter 5, Part 6, Division 2 of the Act.  In my view however, this argument takes the matter too far.  The requirements of the EPO are not in the nature of unilateral amendments of the EA. Rather, the EPO requirements are akin to those that would form part of an appropriate site based management plan and stormwater management plan to assure compliance with the EA.  The appellant has had expert advice and ample opportunity to implement appropriate management plans but has failed to do so.  The council apparently took on that mantle by imposing the EPO.
  1. [144]
    Subsequent to the previous court proceedings, council officers inspected the facility on 13 May 2014. It took more than a year for the council decided to issue the EPO, which they so issued on 31 March 2015 in relation to acoustic amenity, air quality, water quality and stormwater and aquatic ecology. This is incongruous with council’s expectation of the need for immediacy of compliance with the EPO requirements. Unless otherwise stated, all requirements listed in the EPO demanded compliance with 7 days after the notice. The timeframe was both unreasonable and impractical.
  1. [145]
    In my view, the immediate imposition of the EPO will have intolerably immediate material financial implications associated with the upgrade of the slipway, acoustic treatments and dust and odour mitigation requirements. The appellant gave evidence that compliance with the EPO requirements will be very costly, would make the operation of the facility commercially unviable and would be ruinous for her and her husband.  The difficulty is that neither party provided sufficiently detailed costs or other economic evidence to enable me to assess the financial implications of the required measures for each type of activity as prescribed in the EPO.  I am therefore, left with uncertainty about whether or not the imposition of the EPO will jeopardise the appellant’s business. 
  1. [146]
    Therefore, I turn my focus to necessary compliance with the EA.
  1. [147]
    It seems to me that the appellant’s compliance with the EA can be simply achieved by the timely preparation and implementation of an appropriate site based management plan (including stormwater management) containing reasonable and practicable measures to prevent or minimise environmental harm and environmental nuisance that may be caused by the appellant’s operations. In this regard the site based environmental management plan,[113] and revised stormwater management plan,[114] associated with the previous proceedings remain both contemporary and relevant to this task.  Those plans, with appropriate changes having regard to my findings, will satisfy the proposed orders. 
  1. [148]
    The consequence of not imposing the plans is that the threat of the identified environmental harm and nuisance will remain undiminished.
  1. [149]
    Since the appellant has shown a reluctance to do so, an EPO compelling the timely preparation and implementation of a site based management plan is warranted in this case. This course, given the current non-complying operation, will necessarily but properly:
  1. Restrict the operation of the facility within the scope of the EA; and
  1. Involve compliance costs with the imposition and implementation of an appropriate management plans.
  1. [150]
    The imposition of an EPO in this way will provide much greater consultation, co-operation and compliance. It will certainly ensure that the threat of serious environmental damage by the release of contaminants to the environment will be diminished. Subject to hearing further submissions, I think 90 days will be ample time for the appellant to prepare, and start to implement, a site based management plan and a stormwater management plan.

Conclusion

  1. [151]
    For these reasons, I propose to make the following orders:
  1. The appeal is allowed in part;
  1. The review decision of the council made on 4 May 2015 is set aside;
  1. The Environmental Protection Order dated 31 March 2015 is set aside;
  1. In substitution for the Environmental Protection Order dated 31 March 2015, an Environmental Protection Order will issue, requiring the appellant to prepare and lodge with the council within 90 days of the order:
  1. (a)
    A stormwater management plan for approval by the council pursuant to Condition C1 of the Environmental Authority No. 250000301; and
  1. (b)
    A site based management plan containing reasonable and practicable measures to prevent or minimise the environmental harm, including environmental nuisance, in relation to conditions A2, A5, A10, B1, B2, B3, B6, C1, C2, C4, C5, D1, E1; F1, F3, and F4 of the Environmental Authority No. 250000301.
  1. Each party will bear their own costs of the appeal unless either party applies for a different order within 14 days.
  1. [152]
    I will hear further submissions on the appropriate form of orders and the future conduct of the proceedings on a date to be fixed.

Footnotes

[1] Loader v Moreton Bay Regional Council [2013] QCA 269

[2]  Exhibit 40 – containing judgment of Griffin SC DCJ delivered 20 December 2012 (P & E Appeal Nos 237 of 2009 and 1664 of 2010)

[3]  Affidavit of Mr Bristow, Court Doc 13, Exhibit DJB-01 Doc G (p 56).

[4]  Affidavit of Mr Manley, Court Doc 16, Documents F and G to Exhibit CPM-01.

[5] Environmental Protection Act 1994 (Qld), s 536

[6] Environmental Protection Act 1994 (Qld), s 539

[7] Briginshaw v Briginshaw (1938) 60 CLR 336 at 363

[8] Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPELR 262 at 265

[9] Briginshaw v Briginshaw (1938) 60 CLR 336 at 363

[10]  Affidavit of Mr Galvin, Court Doc 11, para 17.

[11]  Affidavit of Mr Galvin, Court Doc 11, para 20.

[12]  Affidavit of Mr Galvin, Court Doc 11, para 20.

[13]  CEO Certificate, Court Doc 17, pp 66, 74, 104, 124, 182, 188, 189, 196, 203, 219, 226, 232, and 242.

[14]  Court Doc 17, pp 66, 124 and 226

[15]  Court Doc 17, pp 104-106

[16]  Court Doc 17, Pp 74, 189 and 190-192

[17]  Affidavit of Mrs Hudson, Court Doc 50, para 12.2.

[18]  Affidavit of Mr Ross, Court Doc 51, para 23.3.

[19]  Second Affidavit of Mr Galvin, Court Doc 66.

[20]  Second Affidavit of Mr Galvin, Court Doc 66, paras 4, 5.

[21]  CEO Certificate, Court Doc 17, pp 56, 75, 149, 196, 226 and 231.

[22]  CEO Certificate, Court Doc 17, pp 75, 196-202, 226-231.

[23]  Affidavit of Mr Ross, Court Doc 51, para 23.2.

[24]  Para 80 supra. See also para 87.

[25]  Affidavit of Ms Gregory, Court Doc 52, paras 19.4, 23.

[26]  Respondent’s Reply Submissions, para 1.11 footnote 7

[27]  Certificate of the CEO, Court Doc 17, para 3.

[28] Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222 at 230.  Attorney‑General New South Wales v Quin (1989) 170 CLR 1 at 17 and 18.

[29]  Chapter 5, Part 7 EPA.

[30]  Second Affidavit of Mr Galvin, Court Doc 66, para 5.

[31]  Affidavit of Mr Goodfellow, Court Doc 14, para 19.1.

[32]  Affidavit of Mr Goodfellow, Court Doc 14, para 14.

[33]  Affidavit of Mr Goodfellow, Court Doc 14, paras 16-18.

[34]  Affidavit of Mr Goodfellow, Court Doc 14, para 19.4.

[35]  Exhibit 9, p 33.2.

[36]  Court Doc 50.

[37]  Court Doc 51.

[38]  Affidavit of Mrs Hudson, Court Doc 50, para 12.1.

[39]  Affidavit of Mr Ross, Court Doc 51, para 23.1.

[40]  Transcript p 4-48, lines 5 to 37.

[41]  Affidavit of Mr Goodfellow, Court Doc 14, para 20.

[42]  Affidavit of Mr Goodfellow, Court Doc 14, para 20.5

[43]  Affidavit of Mr Goodfellow, Court Doc 14, para 20.6

[44]  Affidavit of Mr Goodfellow, Court Doc 14, 20.7

[45]  Transcript, p 4-67, line 30, 4-70, line 32.

[46]  Affidavit of Mr Goodfellow, Court Doc 14, para 19.2, para 20.7.

[47]  Affidavit of Mr Goodfellow, Court Doc 14, para 20.

[48]  Affidavit of Mr Goodfellow, Court Doc 14, para 22.

[49]  Affidavit of Bristow, Court Doc 13, paras 20 to 32.

[50]  Court Doc 13

[51]  Exhibit 40 – containing judgment of Griffin SC DCJ delivered 20 December 2012 (P & E Appeal Nos 237 of 2009 and 1664 of 2010)

[52]  Affidavit of Mr Manley, Court Doc 16, Documents F and G to Exhibit CPM-01.

[53]  Affidavit of Mr Bristow, Court Doc 20, Exhibit DJB-02, document A, p 10.

[54]  Affidavit of Mr Bristow, Court Doc 13, paras 6 and 33, exhibit DJB-02 p 10.

[55]  Second Affidavit of Mr Bristow, Court Doc 20, paras 16-36.

[56]  Affidavit of Mr Bristow, Court Doc 20, pp 11-45

[57]  Second Affidavit of Mr Bristow, Court Doc 20, para 38.

[58]  Second Affidavit of Mr Bristow, Court Doc 20, para 39.

[59]  Second Affidavit of Dr Thorogood, Court Doc19, paras 28 and 29.

[60]  Transcript, p 3-25, line 37 to transcript 3-26, line 30.

[61]  Affidavit of Mr Bristow, Court Doc 13, para 33.10, Transcript p 3-24, line 10-11, Transcript, p 3-24, line 34-45.

[62]  Third Affidavit of Mr Bristow, Court Doc 61, para 12.4.

[63]  Transcript, p 3-80, line 45 to p 3-81 line 2.

[64]  Transcript, p 3-81 lines 9 to 13.

[65]  Transcript, p 3-61, lines 21 to 28.

[66]  Transcript, p 3-82, lines 25 to 33.

[67]  Transcript, p 3-80 line 45 to p 3-81 line 2.

[68]  Transcript, p 3-81 lines 9-13.

[69]  Affidavit of Mr Bristow ,Court Doc 13, para 33.10; Transcript p 3-24 line 10-11; Transcript p 3-24 line 34-45; Evidence of Dr  Thorogood Transcript p 3-80 line 45 to p 3-81 line 2; Transcript p 3-81 lines 9-13.

[70]  Transcript, p 3-83, lines 43-45.

[71]  Exhibit 9 pp 16.4 and 17.9

[72]  Court Doc 17, the CEO Certificate

[73]  Third Affidavit of Mr Bristow, Court Doc 61, para 15.1.

[74]  Affidavit of Dr Thorogood, Court Doc 15, para 47.

[75]  Transcript p 3-16, line 44, 45

[76]  Transcript P 5-86, lines 21-22.

[77]  Exhibit 9 p 27.5

[78]  Exhibit 9 p 31.9)

[79]  Transcript P 5-85.

[80]  Exhibit 9, pp 10 and 11.

[81]  Transcript P 5-82, lines 5-30

[82]  Exhibit 9 p 10.9 and 11.1

[83]  Exhibit 9 p 11.5

[84]  Affidavit of Ms Gregory, Court Doc 52, para 12.

[85]  Exhibit 9 p 22.4

[86]  Court Doc 17 pp 66, 124, 226

[87]  Third Affidavit of Mr Bristow, Court Doc 61, para 12.4.

[88]  Exhibit 9, p 31.9.

[89]  Exhibit 9, p 29.5, p 43.3, p 44.9, p 45.1, affidavit of Mr Cuthbert, Court Doc 45, para 9(h).

[90]  Affidavit of Ms Gregory, Court Doc 52, paras 19.4, 23.

[91]  Third Affidavit of Mr Bristow, Court Doc 61.

[92] Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222 at p 230.  Attorney‑General New South Wales v Quin (1989) 170 CLR 1 at 17 and 18.

[93]  Chapter 5, Part 7 EPA.

[94]  Exhibit 9, p 31.9.

[95]  Affidavit of Mrs Cuthbert, Court Doc 46, para 20(y).

[96]  Exhibit 9 p 29.9

[97]  Affidavit of Mr Manley, Court Doc 49, para 11 and Transcript, p 5-77 line 38.

[98]  Affidavit of Mrs Cuthbert, Court Doc 46, para 43(i), Exhibit 9 pp 44.9, 45.1.

[99]  Affidavit of Mr Bristow, Court Doc 13, para 51.

[100]  Affidavit of Mr Bristow, Court Doc 13, Exhibit DJB-01 Doc G (p 56).

[101]  Affidavit of Mr Manley, Court Doc 16, Documents F and G to Exhibit CPM-01.

[102]  Transcript P 5-84, lines 35-39.

[103]  Section 4 EPA.

[104]  Section 4(6)(b) EPA.

[105]  Section 3.5.1 of the Intergovernmental Agreement on the Environment.

[106]  Exhibit 40 – Exhibit Judge Griffin SC DCJ delivered 20 December 2012 (P & E Appeal Nos 237 of 2009 and 1664 of 2010)

[107]  Exhibit 9 - Transcript 4-79 lines 32-34.

[108]  Affidavit of Mrs Cuthbert, Court Doc 46, Exhibit HLC1, Item 5, pp 39-41.

[109]  Section 521(12) EPA.

[110]  Section 521(6) EPA.

[111]  See the decision of Searles DCJ dated 31 July 2015 in Cuthbert v Moreton Bay Regional Council [2015] QPEC 36 para [21].

[112] Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111, at [190] to [194].

[113]  Affidavit of Mr Bristow, Court Doc 13, Exhibit DJB-01 Doc G (p 56).

[114]  Affidavit of Mr Manley, Court Doc 16, Documents F and G to Exhibit CPM-01.

Close

Editorial Notes

  • Published Case Name:

    Cuthbert v Moreton Bay Regional Council

  • Shortened Case Name:

    Cuthbert v Moreton Bay Regional Council

  • MNC:

    [2015] QPEC 63

  • Court:

    QPEC

  • Judge(s):

    Morzone DCJ

  • Date:

    18 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Attorney-General (NSW) v Quin (1989) 170 CLR 1
3 citations
Jump To
Cite 1 - (1989) 170 CLR 1
Cite 2 - (1989) 170 CLR 1
Cite 3 - (1989) 170 CLR 1
Briginshaw v Briginshaw (1938) 60 C.L.R 336
4 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Cite 4 - (1938) 60 C.L.R 336
Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111
2 citations
Jump To
Cite 1 - [2013] FCAFC 111
Cite 2 - [2013] FCAFC 111
Cuthbert v Moreton Bay Regional Council [2015] QPEC 36
2 citations
Jump To
Cite 1 - [2015] QPEC 36
Cite 2 - [2015] QPEC 36
Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPELR 262
2 citations
Jump To
Cite 1 - [2009] QPELR 262
Cite 2 - [2009] QPELR 262
Lever Finance Ltd v Westminster London Borough Council (1971) 1 QB 222
3 citations
Jump To
Cite 1 - (1971) 1 QB 222
Cite 2 - (1971) 1 QB 222
Cite 3 - (1971) 1 QB 222
Loader v Moreton Bay Regional Council [2013] QCA 269
2 citations
Jump To
Cite 1 - [2013] QCA 269
Cite 2 - [2013] QCA 269
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
1 citation
Jump To
Cite 1 - (2001) 52 NSWLR 705

Cases Citing

Case NameFull CitationFrequency
Citigold Corporation Limited v Chief Executive, Department of Environment and Heritage Protection (No. 5) [2016] QLC 623 citations
Cuthbert v Moreton Bay Regional Council (No 2) [2018] QPEC 402 citations
1

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